The Challenge Facing Gas Bans–and What Can Be Done

August 11, 2020 | Jake Duncan

In late 2019, the town of Brookline, Massachusetts became the first municipality outside of California to ban fossil gas hookups in new buildings and major renovations, a key strategy on the path to a fully electrified future. Fueling the many functions of a building with electricity allows buildings to be powered with clean renewable energy, as opposed to fossil gas, and is a critical strategy to meet climate goals. However, the Massachusetts Attorney General’s Office (AGO) disapproved Brookline’s fossil gas ban last month, slamming the door shut on Brookline and other Massachusetts municipalities following their citizen’s demand to take immediate climate action. The existing Massachusetts state laws that led to the disapproval may have counterparts in some of the other states where more than 50 other local governments are considering similar fossil gas bans, adding an obstacle to fossil gas bans as a pathway to electrification. 

Let’s take a look at the challenges and what they could mean for the transition to cleaner energy and buildings.

Local Fossil Gas Ban Stopped by State-Level Regulations 

Prohibiting new fossil gas has been lauded as an obvious and immediate electrification solution, yet the legality of this approach in some states is still in the air. The swift domino of California cities taking this route has led to some states, like Arizona, to attempt to preempt local governments from passing their own bans. Even when there is support for the policy, the existing legal and policy structure may prohibit such bans. This is what happened with Brookline.

The Attorney General’s Office stated in its decision, “The Attorney General agrees with the policy goals behind the Town’s attempt to reduce the use of fossil fuels within the Town. However, the Legislature (and the courts) have made plain that the Town cannot utilize the method it selected to achieve those goals.”

The decision explains that the bylaw was in conflict with three state regulations: building codes, gas codes, and the regulation of gas distribution by the Department of Public Utilities (DPU).

Massachusetts state building and gas codes prioritize uniformity and limit a local government’s ability to develop unique laws. The AGO found that Brookline’s fossil gas ban interferes with the uniformity of state building and gas codes by creating new reasons to deny building permits and by creating a new appeal process.

The AGO also found that Brookline’s policy violated Chapter 164 of state code, which states that a municipality cannot use its authority to hinder state policies on delivering uniform utility services. Brookline hoped to avoid the invocation of Chapter 164 by designing its bylaw to only apply to gas infrastructure within a building, not the infrastructure that connects to the utility managed distribution system. But the 44-year-old state code proved to be so clearly written that there was no way around it.

Implications for the Energy Transition 

Since buildings represent around 40% of national energy use, they are prime target for electrification. Why, then, did the gas ban prove so difficult in Brookline, and what can be done?

The niche realm of utility regulation doesn’t get much national attention, but it is a key lynchpin to the evolving energy landscape. Public Utility Commissions (PUC), state agencies that regulate investor-owned utilities, have historically only been asked to consider affordability and reliability as they regulate utility actions. If PUCs were directed to consider climate change and equity impacts of utility actions—in addition to affordability and reliability—they would have more legal ground to allow electrification bylaws such as Brookline’s.

Another under the radar yet crucial group are code officials. Brookline’s bylaw was shot down because it was different from state building code. What if the state building code was an electrification code? This is feasible, but requires more engagement by code officials to transform building codes into a forward-looking solution. 

Electrification advocates and energy efficiency advocates work across both utility and codes, but sometimes don’t see eye to eye. Why pursue energy efficiency if everything is powered with clean electricity? Well, efficiency can buy us time to overcome the hurdles to electrification like those seen in Brookline. Energy efficiency delivers carbon and dollar savings now, and minimizes the amount of additional renewable power and grid infrastructure needed to power a fully electrified economy. Working in tandem, energy efficiency and electrification deliver decarbonization at a much lower cost than either can on its own.

An Emerging Path toward Building Electrification

Forward-looking code officials, utility regulators, policymakers, and clean energy advocates need to work together for rapid, effective change. IMT works to ensure that our buildings minimize pollution and support the larger transition to clean energy. In this regard, the most promising policy tool being deployed at the local level today is the building performance standard (BPS). A BPS works by setting one or more standards for building performance that become stricter over time, driving continuous long-term improvement in the building stock. The standards can apply to energy use, carbon emissions, water use, or other metrics.  Importantly, BPS policies address existing buildings, which constitute the majority of climate emissions. Bans and codes, in contrast,  tend to apply only to new buildings or major renovations. A BPS has a clear pathway to encourage electrification by setting standards for on-site fossil fuel use. For example, New York City’s Local Law 97 establishes a standard for building carbon emissions, which creates an incentive for buildings to electrify and use clean electricity.

To date, three cities and one state have passed building performance standards and Brookline’s neighbors in Boston and Cambridge are currently developing BPS legislation. IMT is advising on implementation of the four laws and working with more than 10 other jurisdictions considering them. Each implementation is responsive to local needs, including the existing regulations, and also to local stakeholders, which typically include members of the business and residential community in addition to policymakers. A major advantage of this approach is that the finished BPS then has a base of support as well as a connection to overarching city priorities and strategies. This is critical because these supporters are much more likely to help the policy overcome any unforeseen political or regulatory obstacles, and the policy is also more likely to address unintended consequences such as higher rents or utility bills.

Gas bans could certainly play a role in helping the U.S. decarbonize rapidly, but moving forward requires a systemic view of policy that people can get behind. Brookline’s experience should be a reminder that a holistic approach is needed: to address the health, climate, and equity impacts of our utility infrastructure and account for the investments we need to make in our buildings to achieve a low-carbon future. 

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